Punishment Without Trial: The Department of Education Attacks Students’ Due Process Rights

Hans Bader

Hans Bader is Counsel for Special Projects at the Competitive Enterprise Institute. Coming to CEI in 2003, Hans's prior casework has included suits involving the First Amendment, federalism, and civil rights issues.

He graduated from the University of Virginia with a B.A. in economics and history, and later earned his J.D. from Harvard Law School. Just before joining CEI, Hans was Senior Counsel at the Center for Individual Rights. He practiced education law for years, including a stint at the U.S. Department of Education. He is a contributor to OpenMarket.org.

How would you feel if you could be expelled from your dorm, or prevented from attending a class, just because someone accused you of something — even if the accusation never led to a finding of guilt, or even a formal investigation? That’s what the Education Department recently required at Tufts University in Massachusetts. It demanded that Tufts impose such “interim measures,” to settle a federal Title IX investigation brought against it after it found a student not guilty of sexually assaulting a classmate.

Such measures violate students’ due process rights. But this frightening practice is likely to spread to other colleges across America, since Title IX applies to any college whose students get federal financial aid, and the Education Department can cut off all aid to a college that doesn’t comply with its interpretation of Title IX. That’s a financial death sentence for most colleges.

The settlement requires “that the University provide interim measures during the course of a complaint, or a university-initiated investigation; an explicit statement that interim measures are available even if the complainant does not file or continue to pursue a complaint.”

“Interim measures” are measures taken against the accused before he is even found guilty. Things like excluding the accused from a classroom or dorm he shares with the accuser. Applying such measures “even if the complainant does not” pursue a complaint could result in them continuing indefinitely, and could result in the accused being excluded from classes or dormitories without ever having any opportunity to defend himself!

The Education Department’s April 28 letter announcing the results of its investigation of Tufts declared that the University “failed to provide the Student with effective interim measures during the eighteen months that followed her January 2010 report that she had been sexually assaulted.” It complained that the University took over a month before “requiring the Accused to move out of the residence hall,” and left her to attending a class “together with the Accused” rather than barring him from that class, which “thus exposed” her “to close physical proximity to the Accused.”

Disturbingly, the Education Department never even discussed the possibility that the accused student might be innocent, as the university found. Instead, it assumed guilt, by saying that the lack of “interim measures” against the accused “resulted in the continuation of a sexually hostile environment” for the accuser. It also complained that the university allowed in certain evidence of innocence, rather than excluding it as untimely or inadmissible – like “allowing the Accused to submit an Addendum” responding to the charges after the deadline, and letting him show the complainant lied about her medical history, which he obtained by pretending to be a medical student.

Its settlement with Tufts is even worse. It requires Tufts to revisit all past disciplinary proceedings through 2011, which could lead to punishment of someone previously found not guilty – double jeopardy in all but name. It requires the university to promote anonymous investigations. And it approves changes to Tufts’ harassment policy requiring “a statement that the alleged misconduct does not have to be ‘directed at’ a specific person or persons to constitute harassment.” That change could result in sexual discussions between two consenting students being banned as harassment when they are overheard by a third student who is offended by them. That violates the First Amendment under court rulings like Rodriguez v. Maricopa Community College, which ruled that academic speech can’t be banned as racial or sexual harassment when it is not aimed at the complainant.